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ELCPartially AllowedEnvironment & Land Case 9 of 2016· [2023] KEELC 17174 (KLR)

Chepkwony v Attorney General & 2 others

Environment and Land Court
27 April 2023
MOM C Oundo
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's compensation claim against the Government was struck out because he filed it ten years too late.

What this practically means

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Executive summary

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The 2nd Defendant, National Land Commission, applied under Order 2 Rule 15(1) of the Civil Procedure Rules to strike out the Plaintiff's suit as time barred and an abuse of process, contending the trespass cause of action arose in 2005 and the suit was filed years later without leave. The 1st Defendant, the Attorney General, supported the application, additionally invoking Section 3(1) of the Public Authorities Limitation Act. The Plaintiff opposed, asserting his suit, filed February 16, 2016, sought compensation for the compulsory excision of part of Kericho/Koiwa/486 by the Ministry of Lands for road construction, was founded on Article 40 constitutional compensation rather than trespass, and fell within the twelve-year period. Justice M C Oundo examined the further amended plaint and found the claim pleaded trespass, illegal acquisition and conversion, with particulars of loss and a claim for general damages, eviction and alternative compensation. Holding that the Attorney General represents the Republic, the court held the Public Authorities Limitation Act applied, under which tort claims against Government must be filed within twelve months, and Section 6 of that Act substitutes that period for the three-year period in Section 4(2) of the Limitation of Actions Act. Time ran from 2005 and lapsed in 2006; the suit filed in 2016 was about ten years late. Relying on authority that limitation goes to jurisdiction, the court allowed the application and struck out the suit with costs.

Key legal issues

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01

Whether the suit was founded on trespass or on compensation for compulsory acquisition

Holding

The court held the claim was anchored on the tort of trespass, notwithstanding the plaintiff's framing as compensation for excision

Reasoning

The court examined the further amended plaint, noting the plaintiff pleaded that officials and the 2nd Defendant trespassed, surveyed and excised a portion of his land, and particularised loss and damage from trespass while claiming general damages, eviction and alternative compensation. On those pleadings the claim was tortious in nature.

02

Whether the suit was time barred

Holding

Yes; the suit filed in 2016 over a 2005 cause of action was statute barred by about 10 years under Section 3(1) of the Public Authorities Limitation Act

Reasoning

Time began running in 2005 when the Government acquired part of the parcel to construct a road; the 12-month period under Section 3(1) lapsed in 2006. Section 6 of that Act read with Section 4(2) of the Limitation of Actions Act confirms the 12-month period for tort claims against Government. The suit filed on February 16, 2016 was therefore out of time.

Legal principles established

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  • Where the Attorney General is sued, the Public Authorities Limitation Act applies and actions founded on tort against Government must be brought within 12 months
  • Section 6 of the Public Authorities Limitation Act substitutes the 12-month period in section 3(1) for the three-year period in section 4(2) of the Limitation of Actions Act for tort claims against Government
  • Limitation goes to jurisdiction; a statute-barred claim cannot be entertained

Court orders

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  1. 1.The Application dated March 3, 2022 is allowed
  2. 2.The Plaintiff's suit is struck out with costs for being time barred

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(b),(c) & (d); Order 51 Rule 1
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSection 4(2)
  • Public Authorities Limitation ActSections 3(1) and 6
  • Government Proceedings ActSection 13A
  • Constitution of KenyaArticles 40 and 156

Cases cited (7)

  • Jones M Musau & another v Kenya Hospital Association & another
    [2017] eKLR

    An action founded on tort may not be brought after three years from accrual

  • Simon Ndwiga Murage v Embu Water And Sanitation Co Ltd
    [2020] eKLR

    Consequential damage cannot extend limitation period ad infinitum; statute-barred plaint discloses no reasonable cause of action

  • Bosire Ogero v Royal Media Services
    [2015] eKLR

    Limitation goes to jurisdiction; statute-barred matters cannot be entertained

  • Haron Onyancha v National Police Service Commission & Another
    [2017] eKLR
  • Patrick Musimbe v National Land Commission & 4 Others
    [2016] eKLR

    Procedure for compulsory acquisition of private property by the state

  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] 104

    Limitation law protects defendants against unreasonable delay and does not help dilatory plaintiffs

  • Mukuru Munge v Florence Shingi Mwawana & 2 others
    [2016] eKLR

    Purpose of limitation law: avoiding stale claims and securing fair trial

Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 2 Rule 15(1)(b),(c) & (d) and Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chepkwony v Attorney General & 2 others", Case Analysis (2023). Environment & Land Case 9 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.